I think it was Lynley Dodd's Hairy Maclary who went out of the gate and off for a walk with his friends Hercules Morse, as big as a horse and Bottomley Potts, all covered in spots...
In this case, following a decision of the Employment Relations Authority, Ms Jacqueline Sydow is facing a potential journey, further than out of the gate and off for a walk, out the door of her employment, and possibly out of New Zealand...
Ms Sydow, an immigrant from South Africa, was employed by an Auckland based recruitment company, Executive Recruiters International Limited. The issue in this case was the company's actions, seeking to vary Ms Sydow's terms and conditions of employment, a few days after she had started working for the company.
Ms Sydow was offered employment by the company on 14 November 2008. Her evidence was that she was offered a salary of $55,000 per annum. The offer of employment was expressly made on the basis that Ms Sydow would need to apply for, and be granted, a work visa or permit.
Ms Sydow subsequently commenced employment on 19 January 2009, once she had obtained a work permit allowing her to be employed by the company for up to two years.
A few days after she commenced work, Ms Sydow was presented with an employment agreement, dated 18 January 2009. That employment agreement stated that her remuneration was to be by way of commission only.
The Authority found that this amounted to an attempt to vary the terms and conditions originally offered to Ms Sydow.
An issue arose some eight months later, when Ms Sydow handed the company director a letter from her lawyer advising that, given the circumstances, she considered she had been constructively dismissed.
Accordingly, the Employment Relations Authority was required to determine, whether the company had unilaterally varied her terms and conditions of employment (that is, without her consent) and further, whether this amounted to constructive dismissal.
The Authority found that there was a unilateral variation in January 2009, which amounted to a breach of contract, but that by her conduct, Ms Sydow affirmed the breach.
That is, while she initially expressed her dissatisfaction with the changes to her terms and conditions, there was a period of over five months during which Ms Sydow did nothing to suggest that she had not accepted the terms and conditions. The Authority held that Ms Sydow had in fact, accepted the remuneration that was paid in accordance with the varied terms and conditions.
Accordingly, the Employment Relations Authority held that Ms Sydow's resignation was freely given, although unhappily, and her claim for constructive dismissal did not succeed.
This left Ms Sydow out of a job, most likely out of pocket and without employment in New Zealand. It is not clear whether she will now need to leave the country as a result, but that could potentially be the outcome. That would be a serious consequence for Ms Sydow, and one which she is understandably upset about, if reports are anything to go by.
It is fundamental that in order to lawfully work in New Zealand, a person must either be a New Zealand citizen or in New Zealand pursuant to a current applicable visa and work permit.
If that status changes, depending on the terms and conditions of the applicable work permit, the individual may no longer be able to lawfully work in New Zealand. Likewise, an employer will be breaking the law if it employs or continues to employ someone who does not have a valid work permit or a right to work in New Zealand without one.
Should there be any uncertainty about a current or prospective employee's ability to work lawfully in New Zealand, the employer should urgently seek advice about complying with immigration laws as well as any employment obligations they may have.
The lesson in all of this is a reminder that the threshold for a claim for constructive dismissal is necessarily high. It is also a timely reminder that employers do not have a right to unilaterally alter an employee's terms and conditions, and that any amendment must be by mutual agreement. So, putting the two lessons together - if your terms and conditions are altered without your consent, speak up!
Bridget Smith
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
